Having thus given an outline of the main duties imposed upon the parties to the contract and their remedies for its breach, and attempted to state the terms of an open contract, we will now endeavour to complete our general view of the effect of a sale of land by pointing out in what particulars the rights and obligations of the parties are usually expressed or modified, in formal contracts, by special stipulation. We will first examine the conditions generally made on sales by auction.

Stipulations usually made in formal contracts.

1. As we have seen, on a sale of land by auction the particulars or conditions must state whether the land will be sold without reserve or subject to a reserved price, or whether a right to bid is reserved; and if the sale be announced to be without reserve, it will not be lawful for the vendor to bid, either in person or by agent (a). It is therefore the practice expressly to reserve to the vendor the right to bid as often as he may please (b); and it is usually stipulated that the vendor and his agents may bid as often as he or they may please (c), notwithstanding the doubt judicially expressed as before mentioned (d) whether it be lawful for a vendor of land to employ more than one puffer at an auction. Where there is to be a reserve price, this should be stated in the conditions, and the right for the vendor or his agents to bid should be reserved as well. It is usually stipulated that, subject to the rights so reserved, the highest bidder shall be the purchaser (V). The lowest amount by which the biddings shall advance is generally specified, or else it is provided that the amount of the advance of each bidding shall be regulated by the auctioneer; and the condition is also made that no bidding shall be retracted, the latter stipulation being inserted for whatever it may be worth, notwithstanding that it is thought to be unenforceable. And it is declared that, if any dispute shall arise concerning a bidding, the property shall be put up again and resold (f).

Reserving the right to bid at an auction.

(a) Stat. 30 & 31 Vict. c. 48, s. 5; above, p. 23. (b) Above, p. 24. (c) 1 Davidson, Prec. Conv.

607, 4th ed.; 518, 519, 5th ed.; 1 Key & Elphinstone, Prec. Conv. 258, 4th ed.; 245, 8th ed. (d) Above, p. 23.

2. We have seen that no deposit of any part of the purchase-money can be lawfully demanded after an open contract for sale has been concluded; as the whole price is not payable until the time for completion (g). But on sales of land by auction it is always provided that a deposit of a certain proportion (as ten per cent.) of the purchase-money shall be paid by the purchaser immediately on signing the contract (h). It is also invariably stipulated that the purchaser shall sign a memorandum of the contract immediately after the sale. This stipulation is absolutely necessary on account of the Statute of Frauds (i): but it does not appear that it can be enforced (k).

3. A day is always fixed for the completion of the contract. In such cases it was said that at law time was Deposit: signing a memorandum.

Time for completion.

(c) See above, p. 24.

(f) See above.p. 20: 1 Davidson, Prec. Conv. 519, 607, 4th ed.; 432, 525, 5th ed.; 1 Key & Elphinstone, Prec. Conv. 257, 258, 1th ed.: 245, 8th ed.

(g) Above, pp. 26, 46.

(h)1 Davidson, Prec. Conv. 607, 4th ed.: 519, 5th ed.; 1 Key & Elphinstone. Prec Conv. 268, 4th ed.; 246, 8th ed.

(i) Above, pp. 3, 20-22.

(k) See above, pp. 20-22.

Of the essence of the contract; that is to say, the Courts of Common Law (not unreasonably) held the parties to mean what they said (l), and therefore considered that a stipulation to complete the purchase on a given day bound the vendor to have shown and verified a good title and to be ready to convey on that day; in default of which the purchaser was entitled either to rescind the contract and to recover his expenses incurred thereunder (such as his deposit and his costs of investigating the title), or to sue in affirmance of the contract for damages for breach of the agreement (m). In equity, however, it was well established that neither party to a contract for sale of land should lose bis right to specific performance merely through failure to comply with some stipulation as to time, if time were not of the essence of the contract. That is to say, the Courts of Equity, in administering their own peculiar remedies, held that they were not concluded by the letter of an agreement to do some act within a given time, but would look to what they called "the substance of the contract," and ascertain whether a stipulation as to time were intended to be material or merely formal. And they granted specific relief, if there were no unreasonable delay, notwithstanding the want of exact compliance with a formal stipulation as to time, upon a principle analogous to that on which they decreed the redemption of mortgages after the day fixed for redemption was past (n). The nature of this jurisdiction is thus described by Lord Cairns (o): - "A Court of Equity will relieve against and enforce specific performance, notwithstanding a failure to keep the dates assigned by the contract, either for completion, or for the steps towards completion, if it can do justice between the parties, and if (as Lord Justice Turner said in Roberts v. Berry ( p)) there is nothing in the express stipulations between the parties, the nature of the property, or the surrounding circumstances, which would make it inequitable to interfere with and modify the legal right. This is what is meant, and all that is meant, when it is said that in equity time is not of the essence of the contract. Of the three grounds against interference mentioned by Lord Justice Turner, 'express stipulations' requires no comment. The 'nature of the property' is illustrated by the case of reversions, urines, or trades. The 'surrounding circumstances' must depend on the facts of each particular case" (q). Under the Judicature Act, 1873 (r), stipulations in contracts, as to time or otherwise, which would not before the commencement of the Act have been deemed to be or to become of the essence of such contracts in a Court of Equity, shall receive in all Courts the same construction and effect as they would have theretofore received in equity. On an ordinary sale of land, it is not usual, in fixing the exercise of this jurisdiction, the contract is construed in the same manner in equity as at law; Romilly, M.R., Parkin V. Thorold, 16 Beav. 66; Knight Bruce, L. J., Roberts v. Berry, 3 De G. M. &G. 290; Cairns, C, Tilley v. Thomas, L. R. 3 Ch. 67. But there can be no doubt that the Courts of Equity, in assuming a jurisdiction to enforce contracts which were broken at law by failure to observe a stipulation as to time, have practically interfered with the legal effect of the contract; and when one considers all the delays that have been condoned in equity on the ground that time is not of the essence of a contract to sell land, it appears very questionable whether this doctrine-has really conferred any benefit upon the community.